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Monday, April 15, 2013

By: Liz Majic*

An as-yet unreleased report to the Chief
Justice of the Supreme Court of Canada is urging an overhaul of the family law
system.

The
Globe and Mail has reported that it recently obtained a copy of the
report, which is authored by a committee headed by Supreme Court Justice Thomas
Cromwell, and is set for release very soon. According to the Globe, the report
proposes several structural changes to the family legal system. The
recommendations seek to minimize the personal and financial costs of resolving
family disputes. Indeed, long and drawn out battles over custody, spousal
support, and property can exacerbate tension between former spouses, and
increase expense.

The
report recommends strategies such as streamlining the family law process, designating
more judges with expertise in family law, and empowering court personnel to
help self-represented litigants. Additionally, the report recommends that estranged
spouses attend one session with a qualified mediator before they are permitted
to trial, and that “painful” cost awards be imposed against litigants who
behave badly or impede the settlement process.

There
is no doubt that these recommendations, if implemented, would go a long way
towards improving the family legal system. However, like many other reports pertaining to access to
justice, this report leaves one to wonder whether its recommendations will
address the needs of those who are most vulnerable in family legal disputes:
women survivors of violence.

Abused
women are at greater risk of experiencing serious physical and
psychological impacts
as a result of their legal problems.Despite
the severity of their situations and the fact that they tend to be
disproportionately lower income – even more so following separation – many
abused women still do not qualify for legal aid services. Consequently, many
are left with no choice but to navigate the legal system unrepresented. Those
who opt to retain legal counsel must endure the financial burden of exorbitant
legal fees.

The
repercussions of being unrepresented are great. It is not uncommon for an
unrepresented abused woman to capitulate to her partner’s demands - no matter how
unreasonable they may be. For instance, she may decide to make concessions that
are not in her best interests or those of her children, such as accepting a
joint custody or relaxed access arrangement.

Conceding
to or being granted a joint custody order, or a liberal access order, creates
years of difficulty for a woman whose abusive partner is intent on maintaining
control over her. Abusive men can use such arrangements as an opportunity to
harass, intimidate, and physically assault their ex-partner. As a result,
children may continue to be exposed to violence either by witnessing it, or by
being involved directly in the conflict.[1]

A
number of factors contribute to a woman’s inability to assert her interests in
legal proceedings. She may be intimidated by her partner and his lawyer, or
worried about the perceived threat of her partner’s retaliation. The financial
impact of pursuing legal action can also be a deterrent, along with the
potential risk of harm to her children. Furthermore, the phenomenon of legal
bullying is prevalent in domestic violence cases. The abusive male partner can
simply opt to pursue the matter through the courts until the woman’s resources
are exhausted.

Although
mediation, expert judges, and additional court support for self-represented
litigants are undoubtedly useful resources for family law litigants, such
solutions may not reach women who are fleeing domestic abuse. Rather,
literature on domestic violence consistently shows that women survivors of violence must have a
fundamental right to accessible and readily available legal representation.

Woman
abuse survivors and their children are severely disadvantaged when they do not
have adequate legal representation, especially in the current climate that
emphasizes mediation and shared parenting. Women who are unrepresented must
complete complex paperwork and negotiations without a foundation of legal
knowledge, often in the presence of the abuser and while dealing with fear,
change and transition for themselves and their children.[2]

Ensuring
that women survivors of violence have access to legal support will require a
financial commitment from government. As reported by the Globe, the report
calls for a drastic increase in funding for legal aid in the area of family
law. But it remains to be seen whether the provincial and federal governments
respond. If they fail to act, then Charter-based
claims for publicly funded legal representation where domestic violence has
been alleged should be considered by members of the legal community.

On
a final note, the report apparently also calls on lawyers and law schools to
embrace a culture of mediation, and encourages law schools to stop minimizing
the importance of family law in their curricula. I wholeheartedly agree that
family law is as essential as other foundational law courses like torts and
criminal law. However, I believe that educating and training future lawyers on
domestic violence, in particular, is equally crucial. Women survivors of
violence should be entitled not only to legal representation, but to effective legal representation. By this,
I mean a lawyer who understands the complex dynamics of domestic violence, is
sensitive to the needs of their clients, and ideally provides legal services
from an anti-racist and anti-oppressive framework.

As
far as I am aware, domestic violence and the law is not an integral component
of the curriculum at most Canadian law schools. The topic is usually given a
cursory nod and then brushed away in family law classes. Law schools’
inattention to domestic violence does a disservice to women survivors of
violence and to future family law
lawyers, who will have very minimal, if any, training in dealing with a client
who has experienced abuse.

A
failure to address the experiences of those who are most vulnerable in family
legal disputes exposes
women survivors of violence to the risk of continued abuse in domestic relationships;
impairs their equality and dignity; and threatens their physical and
psychological security and that of their children. As we anticipate the release of
the report to the Chief Justice, I encourage you to consider whether its
recommendations provide for effective and accessible legal representation for
women survivors of violence. Anything less is unjust and unacceptable.

*Liz Majic is in her final year of
law school at the University of Ottawa Faculty of Law. She is currently
participating in a student-run seminar on gender-based violence and the law.

[1] For a
comprehensive analysis of the challenges abused women encounter in the family
legal system, please see: Ontario Victim Services Secretariat, Needs
Assessment and Gap Analysis for Abused Women Unrepresented in the Family Law
System, online: Luke’s Place <http://www.lukesplace.ca/research.htm>.